NOT for PUBLICATION WITHOUT the APPROVAL of the COMMITTEE on OPINIONS GARDEN STATE EQUALITY; DANIEL WEISS and JOHN GRANT; MARSHA
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS GARDEN STATE EQUALITY; DANIEL SUPERIOR COURT OF NEW JERSEY WEISS and JOHN GRANT; MARSHA LAW DIVISION-MERCER COUNTY SHAPIRO and LOUISE WALPIN; MAUREEN KILIAN and CINDY MENEGHIN;SARAH KILIAN-MENEGHIN, DOCKET No.:MER-L-1729-11 a minor, by and through her guardians; ERICA and TEVONDA BRADSHAW; TEVERICO BARACK HAYES CIVIL ACTION BRADSHAW, a minor, by and through his guardians; MARCYE OPINION and KAREN NICHOLSON-McFADDEN; KASEY NICHOLSON-McFADDEN, a minor, by and through his guardians; MAYA NICHOLSON- McFADDEN, a minor,by and through her guardians; THOMAS DAVIDSON and KEITH HEIMANN;MARIE HEIMANN DAVIDSON, a minor, by and through her guardians; GRACE HEIMANN DAVIDSON, a minor, by and through her guardians; ELENA and ELIZABETH QUINONES; DESIREE NICOLE RIVERA, a minor, by and through her guardian; JUSTINE PAIGE LISA, a minor, by and through her guardian; PATRICK JAMES ROYLANCE,a minor, by and through his guardian; and ELI QUINONES, a minor, by and through his guardians, Plaintiffs, v. PAULA DOW, in her official capacity as Attorney General of New jersey; JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services, and MARY E. O’DOWD, in her official capacity as Commissioner of the New Jersey Department of Health and Senior Services, Defendants. Decided: February 21, 2012 Lawrence S. Lustberg and Jonathan Manes, for the plaintiffs (Gibbons,P.C., attorneys; Mr. Lustberg and Mr. Manes, on the joint brief) Hayley J. Gorenberg, for the plaintiffs, admitted pro hac vice (Lambda Legal, attorneys; Ms. Gorenberg, on the joint brief). Jeffrey S. Chiesa, Attorney General of New Jersey, for the defendants (complaint named former Attorney General Paula Dow as defendant) Kevin R. Jespersen, Assistant Attorney General, of counsel and on the brief and Jean P. Reilly, Deputy Attorney General, on the brief). FEINBERG, A.J.S.C. I. BACKGROUND On June 26, 2002, after being denied marriage licenses in their respective jurisdictions, seven same-sex couples (“Lewis plaintiffs”), in permanent committed relationships for more than ten years, filed a complaint in the Superior Court, Law Division, Hudson County. Plaintiffs also sought injunctive relief compelling State officials (“defendants” or “State”), to grant them marriage licenses.1 An amended complaint was filed on October 9, 2002 and by consent, on November 22, 2002, venue was transferred to Mercer County. In challenging the State’s denial of marriage licenses, plaintiffs argued they were deprived of statutory protections, benefits, and mutual responsibilities accorded to heterosexual couples in violation of the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution. Furthermore, plaintiffs asserted that third-party entities, including insurance companies and private employers, failed to accord benefits to same-sex couples. Both parties moved for summary judgment. On November 5, 2003, this court granted summary judgment in the State’s favor and dismissed the complaint. On the record, however, the court referred to pending legislation intended to extend healthcare, insurance coverage, and other benefits to same-sex couples: (1) the “Family Equality Act” that established domestic partnerships which was introduced on June 9, 2003; and (2) an act to establish “Civil Unions” was introduced in 2003 as well. See B. 3743, 210th Leg. (N.J. 2003); see also B. 3762, 210th Leg. (N.J. 2003). 1 The named defendants were Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. As anticipated, the Legislature adopted the Domestic Partnership Act (“the DPA”), N.J.S.A. 26:8A-1 et seq., effective July 10, 2004. The DPA provided that “all persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples. ..” N.J.S.A. 26:8A-2. In 2005, a divided panel of the Appellate Division in Lewis v. Harris, 378 N.J. Super. 168 (App. Div. 2005), held the State’s marriage statutes did not contravene the substantive due process and equal protection guarantees of the State Constitution. N.J. Const. art. I, ¶ 1. Judge Skillman, writing for the majority, noted that only the Legislature could authorize same-sex marriage. Lewis, supra, 378 N.J. Super. at 194. Judge Collester, Jr., dissenting, concluded that substantive due process and equal guarantees of Article I, Paragraph 1 obligated the State to afford same-sex couples the right to marry on terms equal to those afforded to opposite-sex couples. Id. at 201. On October 25, 2006, the Supreme Court of New Jersey, in Lewis v. Harris, 188 N.J. 415 (2006), affirmed in part and modified in part the judgment of the Appellate Division. In Lewis, the Court held: To comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, the State must provide to same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual couples. The State can fulfill that constitutional requirement in one of two ways. It can either amended the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage. If the State proceeds with a parallel scheme, it cannot make entry into same-sex civil union any more difficult than it is for heterosexual couples to enter the state of marriage. It may, however, regulate that scheme similarly to marriage and, for instance, restrict civil unions based on age and consanguinity and prohibit polygamous relationships. [Id. at 463.] The Court’s ruling firmly established that same-sex couples must be afforded the same rights and benefits enjoyed by opposite-sex couples in civil marriage. The Court determined, however, in the first instance, that it was the Legislature’s prerogative to decide whether to open the institution of civil marriage to same-sex couples or to devise a parallel statutory scheme. A parallel statutory scheme, if selected, would be required to provide equal rights and benefits to same-sex couples as those enjoyed by heterosexual couples in civil marriage. Id. at 222-23. In response to the Lewis opinion, the New Jersey Legislature enacted the Civil Union Act. N.J.S.A. 37:1-28 et seq. On March 18, 2010, the Lewis plaintiffs filed a motion in aid of litigant’s rights challenging the failure of the Civil Union Act to fulfill the Lewis Court’s mandate. The complaint sought an order from the Court to compel the Legislature to open the institution of civil marriage to same-sex couples. On July 26, 2010, finding that the action should be heard in the Superior Court, the Court denied plaintiffs’ motion to enforce litigant’s rights, without prejudice. On June 29, 2011, plaintiffs filed a four-count complaint in the Superior Court, Law Division, Mercer County. Plaintiffs are Garden State Equality, an organization with more than 82,000 members, which advocates for lesbian, gay, bi-sexual, and transgender (“LGBT”) civil rights, seven same-sex couples who reside in New Jersey and ten of their children. Defendants are named in their official capacities based on their respective roles in implementing and enforcing New Jersey’s laws: Paula Dow, the Attorney General of the State of New Jersey, Jennifer Velez, the Commissioner of the New Jersey Department of Human Services, and Mary E. O’Dowd, the Commissioner of the New Jersey Department of Health and Senior Services. Counts one through four, respectively, assert a denial of equal protection under Article I, Paragraph 1 of the New Jersey Constitution; a denial of the fundamental right to marry under Article I, Paragraph 1 of the New Jersey Constitution; a denial of equal protection under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983; and a denial of substantive due process under the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. § 1983. On August 10, 2011, defendants filed a motion to dismiss the complaint. On November 29, 2011, the court denied the motion to dismiss count one and granted the motion to dismiss counts two, three and four.2 On December 19, 2011, plaintiffs filed a motion for reconsideration to reinstate count three of the complaint. The State filed opposition and plaintiffs filed a reply. Plaintiffs assert: (1) under Section 1983 it is not necessary to demonstrate that the right at issue is “well- established” or the existence of a fundamental right to same-sex marriage; (2) the court overlooked its role in enforcing Federal Constitutional Rights; (3) other courts have considered challenges to discriminatory state marriage practices based on Federal Constitutional grounds; and (4) the interests of justice warrant permitting plaintiffs to develop a full record for appellate review. 2 The court heard oral argument on November 4, 2011. In opposition to the motion for reconsideration, the State argues: (1) the Supreme Court’s dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), establishes that a state statute limiting marriage to heterosexual couples does not violate the Federal Equal Protection Clause; (2) this court must apply a rational basis test in evaluating the Federal Equal Protection claim because there is no fundamental right or suspect/quasi- suspect classification; (3) the limitation of the designation of “marriage” to heterosexual couples satisfies the rational basis test and is valid under the Federal Equal Protection Clause; and (4) the Federal Equal Protection claim fails in the absence of state action.